The opinion of the court was delivered by: WELSH
Appeals were taken from the judgment entered herein against the American-Hawaiian Steamship Company and from the dismissal of the cause as to the other original defendants. The Circuit Court in its opinion, Publicker Commercial Alcohol Co. v. Independent Towing Co., 3 Cir., 165 F.2d 1002, has determined that the judgment against Hawaiian must be reversed, and that the order dismissing the cause as to the Independent Towing Company be affirmed. The Circuit Court directed that the order of dismissal be vacated as to the Tugboat Neptune Company and Tugboat Triton Company, and that the liability of the original defendants, other than Independent, be redetermined in accordance with the law of Pennsylvania.
In pursuance of the mandate of the Court, we have reviewed the record and the law in the light of the Court's comments and make the following amended
1. The plaintiff Publicker Industries, Inc., is a Pennsylvania corporation having its principal office in Philadelphia, and was at all times material to this case the owner of Pier 103 South Warves, Philadelphia, Pa.
2. The defendant American-Hawaiian Steamship Company is a Connecticut corporation having a place of business in Philadelphia and was at all times material to this case the agent of the United States acting through the War Shipping Administration, which administration was the owner of the S.S. William J. Worth.
3. The Independent Towing Company is a Delaware corporation having its place of business in Philadelphia, and is engaged in the maritime towing business.
4. The Tugboat Neptune Company is a Delaware corporation having its place of business in Philadelphia, and was at the times herein referred to the owner and operator of the Tugboat Neptune.
5. The Tugboat Triton Company is a Delaware Corporation having its place of business in Philadelphia and was at the times herein mentioned the owner and operator of the Tugboat Triton.
6. On September 29, 1944, the American-Hawaiian Steamship Company ordered the Curtis Bay Towing Company, which company was engaged in maritime towing, to undock the William J. Worth, which was moored bow-in along the south side of Pier 98 South, Philadelphia.
7. The Curtis Bay Towing Company, not having tugboats available, requested the Independent Towing Company to undertake the undocking operation as it had a right to do under its contract.
8. The Independent Towing Company acted as agent for the two tugs Neptune and Triton. The Independent Towing Company was not advised and did not request information concerning the draft of the William J. Worth, and no information was given by the agent of the American-Hawaiian Steamship Company concerning the draft of the Worth.
9. The undocking of the William J. Worth commenced at about 6:00 p.m. on September 30, 1944. Her draft was approximately 31 feet 6 inches at the stern, and 25 feet 6 inches at the bow, with the bottom resting on the mud. Low tide was at 6:42 p.m.
10. The cargo of the Worth had been loaded under the direction of a United States Army Lieutenant who had overruled the suggestion of her captain that certain deck cargo be loaded on the forward deck rather than near the stern.
11. The tugboats Neptune and Triton were dispatched by the Independent Towing Company to assist in the undocking of the William J. Worth. Captain Marvel of the Neptune and Captain Cooper of the Triton were masters of the respective tugs, and the undocking operation was under the general charge of Captain Marvel. The William J. Worth was under the general command of ...